Mandatory injunction maintainable for encroachment removal without possession prayer when ownership admitted and damages inadequate.

JUDGMENT :

P.B. BALAJI, J.

The unsuccessful defendant before the trial Court as well as the Appellate Court, is the appellant in the present second appeal

2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

3. The facts that are necessary for deciding the present second appeal, briefly:

4.The case of the plaintiff:

The plaintiff is the owner of Schedule A property, he having purchased a portion of vacant site of an extent of 1312 sq.ft. from the defendant. The plaintiff has constructed RCC building to an extend of 920.4 sq.ft in schedule B of the suit property, with the remaining portion being vacant. He also constructed a half foot compound wall, which is set out in C schedule Property. The defendant however is claiming right over the vacant site left by the plaintiff in the C schedule property, despite having sold the same to the plaintiff. In March 2017, taking advantages of the plaintiff's absence, the defendant constructed a pucca building above the compound wall, belonging to the plaintiff and also planted drainage pipes in the vacant place and the defendant has constructed one storey building above the compound wall situated in C schedule property measuring ½ X20 feet by way of encroachment. Hence, the plaintiff filed the suit for declaration that C schedule property is an absolute property of the plaintiff and for mandatory injunction to demolish the illegal construction in C schedule property and also for permanent injunction

5. Written statement of defendant:

Admitting that the plaintiff had purchased vacant site from the defendant, the defendant contends that he has constructed a house even in 1994 and has been residing there ever since, including obtaining water connection, electricity connection, and payment of kist. The defendant has not encroached into schedule C property as alleged in the plaint. The plaint sketch is false.

6.Issues framed by the trial Court:

Based on the pleadings, the trial Court has framed the following issues and additional issues:

6.1.Issues:

6.2.Additional Issues

7.Trial:

Before the trial Court, the plaintiff examined herself as P.W.1 and marked Ex.A1 to A6. On the side of the defendant, the defendant examined himself has P.W.1 and Ex.B1 was marked. Ex.C1 to C3 were marked, through the advocate commissioner appointed through the Trial Court.

8.Decision of the trial Court:

The trial Court answering the issues in favour of the plaintiff, decreed the suit.

9.Decision of the First Appellate Court:

Aggrieved by the judgment and decree of the trial Court, the defendant filed an appeal in A.S.70 of 2021 before the Sub-Judge, Thirumangalam. The first Appellate Court, on re-appreciation of the pleadings, oral and documentary evidence, confirmed the findings of the Trail Court and dismissed the appeal.

10.Present appeal:

As against the concurrent findings, the defendant is now on second appeal.

11.Substantial questions of law:

The second appeal was admitted on 16.03.2026. The following substantial questions of law were framed:

“A. Whether the suit filed by the plaintiff against the defendant for permanent injunction or mandatory injunction without praying for recovery of possession is maintainable or not?

B. Whether the C schedule property is properly described as per Order 7 Rule 3 and Order 7 Rule 4 of C.P.C? “

12. I have heard Mr.Sadeskumar, learned counsel for appellant and Mrs.A.Sakthi Bavatharani for Mr.J.Baranthan, learned counsel for the respondent.

13. Arguments of learned counsel for the appellant/defendant:

13.1. Mr.Sadeskumar, learned counsel for appellant, advancing argument for the substantial questions of law would mainly contend that the plaintiff has not satisfied the mandate of Order 7 Rule 3 CPC which requires a clear description of the suit property, especially, when the plaintiff is seeking a relief of mandatory injunction. Taking me through the plaint schedule, Mr.Sadeskumar would state that the schedule does not contain material particulars and decree g